What is unjust about theft?

• Jurisdiction: South Africa
• Citation: 2019 Acta Juridica 347
• Published date: 24 December 2019
• Pages: 347-369
• Date: 24 December 2019
• Author: None

347

What is unjust about theft?

MICHAEL BRYAN*

The principles governing the restitution of stolen property ought to

be straightforward in any legal system, but in common-law systems it

is surprisingly hard to state what these principles are. There are many

reasons for the unsettled state of the law. The restitution of stolen

property, or its value, lies on the indistinct boundary that separates

restitution for unjust enrichment from restitution for wrongs. On

the unjust enrichment side of the boundary, common lawyers have

never clearly articulated the precise injustice that justies the claim to

restitution. They have also not identied the precise circumstances in

which the thief, or later the receiver, is in law enriched. Further more,

the historic division between common law and equitable property

rights obstructs attempts to rationalise the restitutionary principles.

Finally, disagreement between common-law jurisdictions as to whether

proprietary claims can be brought to recover the proceeds of thefts

not involving a breach of duciary duty also complicates the story.

This paper proposes a scheme of restitution based on the absence of

consent to taking rather than on the commission of the crime of theft.

The scheme recognises that the unauthorised taking of property by

duciaries, such as trustees and company directors, raises dierent

considerations from those raised by thefts committed by non-duciaries.

I INTRODUCTION

Daniel Visser memorably described a civil lawyer’s initial encounter

with the law of enrichment in common-law systems as being ‘not

unlike that of the palaeontologists who rst came across earth’s great

experiment with the weird and wonderful alternative life-forms

embedded in the Precambrian fossils of South Australia.’1 Common-

law unjust enrichment, like the earliest life-for ms on the geological

timescale, seems both familiar and strange to the civilian. Some parts

– for example, the restitution of mistaken payments or property

transferred under duress – will be familiar, at least as far as the basic

* PhD (London) MA BCL (Oxford); Emeritus Professor of Law, University of

Melbourne.

1 D Visser ‘Unjustied enr ichment in comparative perspective’ in M Reimann

& R Zimmermann (eds) The Oxford Handbook of Comparative Law (2006) 970.

2019 ACTA 347

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348 PRIVATE LAW IN A CHANGING WORLD

structure of liability is concerned. But common-law systems apply

concepts that have no counterpart in other systems, even though

the factual patterns to which they are applied are universal.

Some of the strangest concepts derive from those doctrines

and remedies classied in common-law systems as equitable. Their

origins lie in the English Court of Chancer y, whose jurisdiction

is nowadays exercisable by all superior and most inferior cour ts

in common-law countries. It is here that we nd trusts, including

resulting and constructive trusts which have evolved as remedies,

as well as principles such as tracing that facilitate the identication

of the claimant’s rights when her property has been exchanged for

other property. These concepts were developed long before the

law of unjust enrichment was recognised as a discrete source of

obligation in common-law jurisdictions. Their role within that law

remains controversial. Disputes about the extent to which a rational

law of unjust enrichment can be constructed from its discrete

common-law and equitable components still resemble theological

debates in that they attract high priests, disciples, sceptics and the

occasional martyr.

The particular restitutionary life-form discussed in this paper

is the unjust enrichment claim for stolen property. The topic

is considered by Daniel Visser in chapter 11 of his magnum opus,

Unjustied Enrichment.2 The law is here concerned, as the author tells

us, with ‘enrichment by taking’, rather than ‘enrichment by giving’.3

Visser notes that the private law remedies for theft in South African

law are ‘located on the faultline between delict and enrichment.’4

Apart from the availability of a vindicatory remedy against the thief

in possession, the claimant may invoke various condictiones – the

condictio sine causa specialis, the actio ad exhibendum or the condictio

furtiva – depending on the circumstances of the case.

Common-law systems also suer from a confusion of aims as

to whether restitutionary remedies for theft are wrongs-based,

vindicate property rights, or reverse unjust enr ichment. But

whereas the principal question for South African law is to identify

the action to be brought against the thief or the receiver of stolen

property, common lawyers must undertake considerable (and, it

2 D Visser Unjustied Enrichment (2008) 652–73.

3 Visser (n 2) 652, citing K Reid ‘Unjustied enrichment and property law’

1994 Juridical Review 167, 171.

4 Visser (n 2) 660.

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